This article was last updated on May 25, 2022
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There is so much wrong with a recent decision of an obscure Department of Labor appeals body regarding a foreign worker that I do not know where to begin.
It involves a rancher refusing to hire a female U.S. citizen to clean his stables because he wanted to hire an alien — and DOL agreed.
Many thoughts come to mind:
- “Male chauvinist pigs prevail in the horse barn”, or
- “DOL reveals deep bias against both women and citizens”, or
- “Why does it take five years for DOL to decide who should remove the horse manure”, or
- “Supremely qualified woman (a citizen) denied non-traditional job by DOL”, or
- “With millions out of work, do we need to import stable hands?”
The story started five years ago, on April 3, 2009, when a biggish ranch in the west (Wichita Partnership Ltd. dba Wichita Ranch — you know the ranch is large when it has “limited” in its name) decided it wanted to hire, and give a green card to, one Sirenia Rodriguez to clean its stables. We know nothing more about Rodriquez, but can safely assume that this person is a citizen of Mexico or one of the Central American countries, perhaps an illegal alien.
Wichita Ranch was obliged to advertise the job; apparently did so, and attracted a single citizen applicant, Erin Mead. The ranch refused to hire her, initially on the grounds that “applicant did not appear to be in the kind of physical shape required for this physical labor job which often has 40 horse stalls to maintain daily.”
The hero of this story now enters the case; this nameless DOL adjudicator carries the title of “certifying officer” (CO) more or less implying that the function of the job is not to make decisions about green card applications, but to grant them.
The CO turned down the employer’s application on the sound basis that the original petition for the green card carried no physical job requirements, and the matter should have ended there.
It did not. The ranch then said that the applicant did not have the requisite four month’s experience as a ranch hand to do the work.
Let’s think about this for a moment, on two levels. First, in the real world can an employer demand that a stable hand (or day laborer or hamburger flipper) must have four months of experience? If cleaning out stables is not an entry-level job, what is?
Never mind, employers under our immigration laws can make unreasonable demands of citizen workers so that they can hire aliens — I have no doubt that Rodriquez has spent a number of months cleaning stables.
Second, Ms. Mead, the citizen seeking this job, had remarkable credentials for it. According the employer (as quoted in the DOL decision) “applicant has experience working as an equine vet tech where there were only three stalls to maintain. She owns a couple of horses of her own at home. She has never worked on a large ranch caring for both horses and cattle.”
If you know how to clean up after three horses, cleaning up after 40 of them is simply a matter of degree. But, more significantly, here is a job applicant for a horse ranch who owns horses. She must, by definition, know and like horses, a huge advantage.
And here’s a job applicant for a job on a horse farm who has worked as an “equine vet tech”.
What more could you possibly want? Does the desired Rodriquez have training as an equine vet technician? Perhaps, but I doubt it.
As one who spent his teenage years on a small (hobby) farm, where my 12-year-old sister and I (without formal training, obviously) played major roles in the care of four cows, 500 chickens, and a Kentucky saddle horse (given to us at a dinner party, but that’s another story), I find the employer’s demand for four month’s experience on a big ranch to be unreasonable, and it is unconscionable that DOL went along with it.
The DOL-discarded employer reason for not hiring Ms. Mead (lack of physical strength) might have been a valid point, of course, but the employer handled that variable badly. It would have been perfectly reasonable to make at least some body strength a job requirement, but the employer did not do that. Later the employer did not offer any supporting observations about Ms. Mead’s physique, such as — and I am making this up — “she’s 65 years old, weighs about 85 pounds, and always seems to be out of breath.”
But the Department is so inclined to say “yes” to employers of foreign workers that it allowed the employer to substitute the four months of experience argument as a reason for rejecting the citizen worker.
The dispute over Ms. Mead’s hiring has been before the Department for five years now, with most of the delays — apparently — relating to slow decisions on the part of the government. That’s an appalling amount of time.
The decision was made by the Board of Alien Certification Appeals (BALCA) on March 7, and was reported (in rather different terms) in a recent issue of Interpreter Releases, the immigration bar’s trade paper.
While the decision itself is outrageous, it is good to see that BALCA told us the name of the alien, that of the displaced American worker, the employer, the employer’s lawyer, and the DOL decision makers. The comparable agency in DHS — which also handles immigration appeals — the Administrative Appeals Office (AAO), redacts all such information out of a bizarre sense of privacy.
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